Bryan Caplan  

When Doesn't the Law Matter?

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Reflections on Competing Visio... Law and Order...
It's clear that many existing laws have little or no effect on behavior.  An even larger class of laws have little or no effect on most people's behavior.  What are the main mechanisms of legal irrelevance?

1. People know the law is not enforced.  Anti-cohabitation laws in modern Virginia are a good example.  If you can shamelessly break the law with impunity, the law effectively doesn't exist.

2. People have no desire to break the law.  Suicide laws are a good example for most of us.  If you wouldn't choose to do X even in the absence of punishment, you're not going to do X in the presence of punishment.

3. People don't want to enforce the law.  Laws against stealing from your parents are a fairly good example.  They're safe targets because they love you too much to call the cops.

4. Enforcing the law is more trouble than it's worth.  Lawsuits for small sums are probably a good example (unless you're in a loser-pays regime).  If there's a $200 fixed cost of going to small claims court, the right to sue for $5 of damages is basically moot.  The same applies if threatening legal action foreseeable leads to a breakdown of more valuable cooperation and/or reputation.

5. A clearly cheaper enforcement mechanism exists. Calling the cops and/or suing people are often obviously inferior to e.g. disowning, firing, ostracizing, yelling, or the silent treatment.  So while breaking the law is costly, legal punishment is not the relevant cost.

I know, of course, that there's a continuum of legal irrelevance.  But you get the idea.  Are there any important mechanisms I'm missing?


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COMMENTS (26 to date)

That sounds like a fairly comprehensive list. Seems like a good idea to try to use this list to highlight how coverture laws etc were as useless as you claim.

Philo writes:

On the other hand, a law can have a "chilling effect," if one is unsure what the law forbids, and so refrains from activities that are not really illegal, erring on the side of safety.

My question was: how certain do you have to be that a law will not be enforced in order for the law *not to be coercing you*?

Doc Merlin writes:

6. The law is unknown. A lot of regulatory laws fall into this category. No one follows them because they don't know they exist. I have a feeling this will become more common in the near future, as more 'regulatory reform' gets passed.

Doc Merlin writes:

@Philo

You are correct. Law that isn't enforced can also be coercion, because it explicitly allows for it to be enforced against you... if you piss off someone badly enough for example. Just because it hasn't been enforced in the past doesn't mean it won't be.

Josh Weil writes:

@Philo

Can you give one example of a law that has a "chilling effect" of significant magnitude?

Two points.

First to Doc Merlin:

I dont quite agree with the "law is unknown" case because it is unknown precisely because a) it is not enforced or b)no one wants to break it. I cant think of cases where people did know know of major laws which have consequences on the ground.

One case that I can think of is "Enforcers don't want to enforce the law". If enforcers disagree with the law they will actively avoid enforcing it. If enforcers are sympathetic to gay people going to jail, they will turn a blind eye to cases of homosexuality.

I think your first point subsumes this subtler points. The question to ask is why is the law not enforced?

Lauren writes:

I'd add at least a couple more cases:

6. The consequences imposed by the law are enough to deter some but not all people. Even if, for example, speed limit laws were perfectly enforced, the fine and time spent paying it may be worth it to the violator. Perhaps a better example might be cruising through an EasyPass lane if your pass has run out. You will definitely get charged and receive a fine, but maybe it's worth it--and with a low enough penalty, maybe even to most people. The law simply becomes a form of price discrimination.

7. Intentional protest in order to change a law. While most folks currently are not willing to accept military discharge or jail in order to challenge publicly a rule such as "don't ask, don't tell," some folks are willing. If that attitude becomes widespread--as did draft evasion including moving to Canada toward the end the VietNam War--a law may lose its public support to the point it is repealed. (This is not the same argument as your point 4. The public sentiment ultimately became so negative and widespread toward the draft law that flouting it was likely to have increased even more defiantly with every increased attempt to enforce it.)

Doc Merlin writes:

@Abhishek Nagaraj

I am referring to laws that are enforced but are broken continuously anyway because law itself is so vague and complex that no one really understands it except specialists in that field.

A good example is federal explosives laws. If you happen to have black powder and pvc pipe in the same house you are are breaking the law, and you legally have a bomb in your house (the ATF defines having a bomb as having all the materials for a bomb)... even if the pvc pipe and black powder have never been put together and you have no intention of doing so. Yes, this is and has been enforced, basically everyone who does pyrotechnics or has fireworks or hunts with a black powder rifle is violating the law. However, unless you are a gun law nut, its unlikely to have a clue about this law.

The law in the US is so broad that basically everyone is a felon who has not yet been caught, and yes these laws are enforced, when people are caught.

This book has more about this.
http://www.amazon.com/Three-Felonies-Day-Target-Innocent/dp/1594032556

Mike Hammock writes:

This whole series of arguments keeps reminding me of an anecdote from an Islamic judge that David Friedman quotes in Law's Order:

A woman stood waiting on the road for the Vizier Hamid ibn 'Abbas and complained to him of poverty, asking alms. When he had taken his seat, he gave her an order for two hundred dinars. The paymaster, unwilling to pay such a sum to a woman of her class, consulted the vizier, who said that he had only meant to give her two hundred dirhems. But as God had caused him to write dinar for dirhem, gold for silver, so the sum should be paid out as it was written.
Some days later, a man put a petition into his hand, wherein he said that the vizier had given his wife two hundred dinars, in consequence whereof she was giving herself airs and trying to force him to divorce her. Would the vizier be so good as to give orders to someone to restrain her? Hamid laughed and ordered the man to be given two hundred dinars.

The point being that even in a society in which, by law, men could divorce women but women could not divorce men, the law does not necessarily determine the outcome.

mdb writes:

Chance of a penalty is low. Speeding is enforced, you can't drive 30 miles without seeing a cop on the east coast, but the chance that you are the one ticketed is very low.

Brian Shelley writes:

Another type - The law is so weakly enforced it actually encourages the behavior meant to be prevented. Tell a child not to touch something, and they want to touch it. I think this underlies the glamourization of pot in movies, etc...

Matt writes:

If the law itself is clearly illegal/illogical. Off the top of my head, I'm thinking about minimum wage laws and tax code (and the new health insurance mandate). I think people often ignore these laws because they don't truly recognize governments right to enforce it. I've known quite a few people who have worked under the table. When I've asked them about legal ramifications, I've gotten some variation of "I can do what I want."

hi fi writes:

A big addition to #3 is that many companies can, but choose not to, sue their clients / customers. Very applicable in IP.

hi fi writes:

(new number): When the punishment doesn't increase the cost of the activity to the point that it becomes a bad choice.
http://politicalcalculations.blogspot.com/2010/03/playing-arizona-state-photo-radar.html

Hume writes:

Here's a thought (although I cannot think of an example of the top of my head)

6. A law that, for whatever reason, cannot possibly be followed by some individuals (e.g., it conflicts with another law).

Fabio Rojas writes:

Bryan, don't overlook the supply side of the law and vested interests. Your list focuses on the individual and her compliance. There are supply factors: who wants the law enforced? Can they muster the state to enforce the law? Can they create a cultural environment for enforcing the law or persuading people to follow the law?

In sociology and legal studies, there's quite a bit of literature on rules, norms, laws and their enforcement. The bottom line is that rules are underenforced and underdetermined. So the story of rules and norms is two sided: what are the costs of following the law (the list you provided) and who has an incentive in selectively applying laws (the issues I raised)?

Philo writes:

@ Josh Weil

Really, the vagueness of the law makes "chilling effect" a pervasive feature. One constantly confronts the question: What can I get away with? In part this is a matter of: What can I do that will not come to the attention of the authorities? but in part it is: What can I do that, even if it came to the attention of the authorities, would not be punished? It is uncertainty about this latter question that gives rise to "chilling effect."

For example, what is the actual speed limit on my local expressway? It is posted as 65 mph, but everyone drives faster without getting ticketed. In my opinion the de facto limit is around 75, and I routinely travel at that speed, never getting a ticket, even when observed by a traffic cop. But my wife is a more cautious, nervous sort: she never drives over 70. In my opinion, she is suffering a "chilling effect." (5 mph is "significant magnitude"!)

Dave writes:

Doc Merlin

Funny, I never heard anyone called a freedom of speech law "NUT". I guess anyone who ownes or uses a gun is a nut.

On a serious note: here in New York the legislature made a big deal about mandatory imprisonment for individuals who possess a loaded handgun.

However, I have been to Bar Assn events where the Judge assigned to the "Gun Part" in one county stated flat out that everyone charged under the new felony possession law will be initially offered a plea to a misdemenaor charge or lower. So basically the court and the DA has rendered the legislature's change in the law useless. This is a combination of Prof Kaplan's numbers 1 and 3 - however as to number 3, I think most of not all people really would like to see this law enforced.

I guess in the US we also have to figure how each branch of govt enforces the law or treats its law making function. We also have state and local governments enforcing diff laws to diff degrees.

As to the law making function I remeber that no one in the NY state legislature's leadership wanted to take what used to be known as the "Sodomy" laws off the books. can laws be kept on the books or enacted by a legislature just for political cover? In my example the legislators had a great opportunity to grandstand - yet in its enforcement nothing has changed. Another example of this was NY's death penalty law that was constitutionally infirm from day one - everyone knew it - but the legisalture and governor earned a lot of political capital when the law was passed.

Ted writes:

Another is that the law is so ambiguously written that it is nearly impossible to follow. If a law is so ambiguous that you don't know what is and isn't just under the law, most people are inclined to ignore it. Some laws that come to mind are loitering, disturbing the peace, and disorderly conduct. Most people don't obey those laws because it's nearly impossible to know when you cross the line into "illegal" territory.

Doc Merlin writes:

@Dave:

The whole reason those laws exist is to try to force plea deals for criminals, imo.

mike shupp writes:

Some laws aren't intended for one class of people but aren't intended for use against another social class. If you're wealthy (but not so prominent that your name gets you automatically into the tabloids) and found possessing cocaine, you'll likely get a fine. If you're poor, you'll get a prison sentence. Embezzle from your church and go to jail; embezzle from your brokerage house and perform community service.

Dude, this is REALLY obvious.


Josh Weil writes:

@Philo

"In my opinion the de facto limit is around 75, and I routinely travel at that speed, never getting a ticket, even when observed by a traffic cop. "

That falls under Bryan's first point of legal irrelevance.

1. People know the law is not enforced.

David Friedman writes:

Mike Hammock quotes one of my medieval Islamic law and econ stories. There's another one that is also relevant:

The poet ibn Harma performed before the Prince of the Muslims, and so delighted was the Caliph at his performance that he said "name your reward."

"The reward I desire is that you send instructions to your officials in Medina commanding that when I am found dead drunk upon the pavement and brought in by the city guard, I be let off from the penalty prescribed for that offense."

"That is God's law, not mine; I cannot change it. Name another reward."

"There is nothing else I desire from the Prince of the Muslims."

The Caliph thought a moment, and then sent instructions to his officials in Medina commanding that if anyone brought in the poet for the offense of drunkenness, the poet should receive sixty lashes, as the law commands, but he who brought him in should receive eighty. Ever thereafter, if anyone saw the poet Ibn Harma lying dead drunk upon the pavement, he would turn to his companion and say "Eighty for sixty is a bad bargain."

The Caliph cannot change a Quranic law, but he can alter the incentives to enforce it.

Chris Koresko writes:

Here's another situation: there is a law on the books but you're not allowed to know what it says.


Peter writes:

Apologies if someone said this, but laws that are disapproved of by a majority or a large minority.

Use of soft drugs. Laws against intoxication.

Telnar writes:

A law which prohibits something which, by the logic of the situation, would not be happening in view of an interested enforcer.

Two kinds of examples:

1) The law relates to an activity which is already illegal and imposes a smaller penalty than other laws (e.g. taxes specifically applicable to illegal drugs)

2) The law relates to something which is unlikely to be occurring unless the enforcer was already ignoring it. Some aspects of the tax codes of certain 3rd world countries seem to be structured to give tax authorities the discretion to attack anyone running a business, so incremental tax laws don't matter unless they change the size of the bribe required for a business to not be subject to the tax system in general.

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